CLAR Committee Meeting

LEGISLATIVE COMMITTEE ON BILL C-20, AN ACT TO GIVE EFFECT TO THE REQUIREMENT FOR CLARITY AS SET OUT IN THE OPINION OF THE SUPREME COURT OF CANADA IN THE QUEBEC SECESSION REFERENCE

COMITÉ LÉGISLATIF CHARGÉ D'ÉTUDIER LE PROJET DE LOI C-20, LOI DONNANT EFFET À L'EXIGENCE DE CLARTÉ FORMULÉE PAR LA COUR SUPRÊME DU CANADA DANS SON AVIS SUR LE RENVOI SUR LA SÉCESSION DU QUÉBEC

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, February 22, 2000

• 1931

[Translation]

The Chair (Mr. Peter Milliken (Kingston and the Islands, Lib.)): Order. We are ready to begin. I see that we have a quorum.

[English]

I hope that all the members here are not too distracted by missing votes.

Our first witness this evening

[Translation]

is Mr. Wayne Norman, a professor at the Centre for Applied Ethics. The name is the same in English and French.

Prof. Norman, Welcome to this committee. Thank you for agreeing to attend. The rule is that you have a maximum of 10 minutes to make your presentation. Then, the members are allowed 35 minutes to ask their questions.

So you have the floor for 10 minutes.

Professor Wayne Norman (Centre for Applied Ethics; appearing in an individual capacity): Thank you very much, Mr. Chairman.

Ladies and gentlemen, for me, as an academic, it is a great honour to appear before you today.

For a good ten years now, I have been studying citizenship problems in various societies, multinational societies. I have also had the opportunity to study and write articles about secession in general and a normative theory in political philosophy on secession, which will no doubt become apparent in my thoughts on Bill C-21.

[English]

I'd like to situate what I would say in the evaluation of Bill C-21 by looking at four situations.

Mrs. Karen Redman (Kitchener Centre, Lib.): It's Bill C-20.

Prof. Wayne Norman: Oh, C-20. I'm in the wrong room. Sorry.

Some hon. members: Oh, oh!

Prof. Wayne Norman: It's worth comparing a situation in which Bill C-20 were enacted with three other situations.

The first is the situation that existed before 1998 in Canada, that is, before the Supreme Court's opinion on the secession reference, where there were no explicit constitutional procedures addressing the legitimacy of a referendum on secession or what obligations the federal government or others would have following a simple majority vote in favour.

The second situation is the one that exists today, the status quo, which is, I take it, the fallback if this legislation weren't enacted, and that's the situation laid out by the framework provided by the judges in 1998.

The third situation, as I mentioned, is the one in which the present bill is enacted in its present form.

And we could compare that with a fourth situation in which some modified version of this bill were enacted.

I will talk about the first three. My view is that the world since the Supreme Court opinion in 1998 is a much better world than the one before. It's a distinct improvement in terms of democracy and the rule of law in Canada. I believe the enactment of Bill C-20 would be what we might call a minor but important, or minor but useful, improvement on the status quo.

• 1935

Just to say a few words about pre-1998 and the problems I have with that, I think what we saw in the referenda in 1980 and 1995 was a laudable democratic exercise where you had all the trappings of democracy: modern campaign legislation, a question and a process sanctioned by a national assembly, peaceful rallies, and vigorous public debates, all the things you want in a democracy. But in effect the path of democracy laid out by the rule of law stopped at the moment the votes were counted. So we had democracy up to the vote and an uncertain future not laid out by any constitutional framework after the vote. Those referenda were a bit like having a strike vote—and maybe there are some NDP members present who could correct me—where you have no union, and you're in a country with no union legislation; or it's a bit like having a parliamentary vote where it's not clear what the rules of Parliament would be after the vote and whether the current rulers would even give up power to the party that won the parliamentary vote. The situation was very much like that before the Supreme Court ruling.

Just to finish that idea, the problem here wasn't so much the PQ and its attempt to rally opinion in Quebec in favour of sovereignty, but rather the fact that there was this glaring hole in our Constitution. Our Constitution provided no framework for the rule of law following a secessionist vote. In that respect our Constitution was no different from almost any other constitution until 1998. I interpret the effect of the judges' ruling in 1998 to have read into our Constitution a certain amount of secessionist procedure. So we now have in our Constitution a kind of procedure for carrying out and regulating secessionist politics.

I believe the Supreme Court ruling is a very impressive document, but that's not what we're here to talk about today. I think with this ruling, with this reading and interpretation of our Constitution, our Constitution is now probably the most enlightened official position on secession in the developed democratic world. Now, in a way that's not saying much, because most constitutions either expressly forbid or exclude the possibility of secession or are silent. But at any rate, it's a marked improvement insofar as it enables the secessionist politics to be played out in some sort of legal framework.

So if that's the case, why do we need Bill C-20? Is there any advantage to passing Bill C-20? I can think of five advantages.

First, I believe it's wholly consistent with the Supreme Court's opinion in 1998.

Second, it extends and clarifies the framework for secession in precisely the areas where the Supreme Court called upon elected officials to extend and clarify.

Third—and this is a multiple point—it makes much clearer to citizens of Canada and Quebec just what the process would be following a referendum, and to some extent before a referendum, on secession. In this sense it's clearer than reading 80 pages of the Supreme Court ruling, as readable as that particular document is. But for ordinary citizens participating in a referendum campaign, it would be easier for them to know exactly what the steps would be following their vote. It also makes clear the steps that in large part would have been taken in 1980 and 1995 had those secessionist votes succeeded. In other words, in 1980 and 1995 the Government of Canada would have had to decide whether the question was clear enough to begin negotiations for secession, and it would have had to decide, given the question, whether the majority was also clear enough. In other words, the third advantage is that it makes much clearer to voters than it has in the past what would actually have happened and what would happen in the future.

• 1940

Fourth, enacting this legislation, I think, would have positive, dynamic effects on the quality of political debates, especially in Quebec, leading up to and during any future referenda. In other words, I believe that in particular there would be much more focus on the need for clarity in the question, at the very least.

Fifth, I believe the points in this legislation and the arguments given for it by the minister are consistent with widely supported and well-grounded principles of constitutional democracy. In fact, as I was reading through the defence the minister gave in Parliament today, it struck me that political philosophers looking at those remarks on democracy would find them utterly banal and obviously true for the most part.

I'd like to finish with just a few words about democracy in a constitutional democracy, which presumably will have something to do with the issue of the legitimacy of a clear majority requirement in the referenda. I would like to make the following point about democracy.

There are really five things to think about in any sophisticated theory of democracy in literature and political philosophy. First, almost every theorist who has ever been taken seriously in the history of democratic thought has treated democracy as more than simply majority rule, and they've done this in two ways. Democratic states as well often sanction legitimate democratic victories with less than a 50% vote. In fact, in the Canadian parliamentary system, as we're all aware, a party can actually win with not just having less than 50% of the vote but even having fewer votes than some other party. That can be legitimate within a democratic constitutional framework. Also, almost all democratic theorists envisage the possibility of enhanced or super majorities being required in certain cases. Constitutional amendments are a typical example of that.

Second, it's more than just a procedure for adding up preferences. To think that the only thing to worry about with democracy is whether you've added up the preferences correctly is an insufficient view.

Third, democracy is also about the quality of deliberation.

Fourth, democracy is about guaranteeing a voice for minority and disadvantaged groups and having members of the majority engage with those groups.

Fifth, democracy is a set of decison-making institutions and procedures to maximize the possibility of a just and efficient government in the long run.

The final point I'd like to make about evaluating a piece of legislation like this is that not only is democracy multifaceted, but also it's only one of the fundamental political principles that are relevant, and this came out in the Supreme Court opinion. The Supreme Court also took into account principles of federalism, constitutionalism and the rule of law, minority rights and, we might also add, rights of citizenship. All of those things are relevant, and I believe those kinds of considerations make the requirement of a super majority, of an enhanced majority, of a qualified majority, legitimate in this case.

I'll stop there and invite your questions.

The Chair: Thank you very much. That's very good.

Mr. Hill.

Mr. Grant Hill (Macleod, Ref.): Thank you for your interest in the committee's work, and thank you for being here.

Many commentators have talked about the majority and have suggested that 50% plus one is not sufficient, yet they have been very reticent to give their own view on what would be sufficient. Having asked this a number of times, I'll ask you if you could give some indication of the minimum—the floor, if you will—that you would find acceptable.

Prof. Wayne Norman: Certainly the floor would be 50%, the very ultimate minimum. I support the idea of not naming a particular figure in this case. I think it depends in part on the question, and I think one could see that there's a sort of sliding scale. Perhaps the clearer the question, the lower the desire to make sure there was a strong enough vote in favour of it.

• 1945

The important point to remember is that it's still the case both in Quebec law and in the Canadian Constitution that the referendum has no statutory force itself. In effect, to put it a bit crudely, it's really something that gives weight to the demands to move political discussion to another forum, this forum being negotiations with the federal government or other federal partners. Obviously the stronger that vote, the better the negotiating position and the stronger the legitimacy of their claim.

I don't think it would make sense to put a particular figure on this, but I would qualify that in one particular way, and one that is relevant at least from the point of view of reflection. If one were founding a country, I believe that country should have a secession clause in its constitution, just like it has an amending formula, or just like it has a division of powers if it's a federation. Especially in a plurinational or diverse state, I think it's a normal thing that a constitution should have, precisely because secessionist politics can arise whether or not you have a clause like that. If it does arise, it's better that it can be conducted according to the rule of law.

If federal partners were founding a state and they wanted to have a secession clause, I think they probably would fix a certain figure in the constitution, perhaps at something like two-thirds, as they have in St. Kitts and Nevis, for example. The reason for that would be in part that it would allow an escape if there was real oppression and some group wanted to get out of the country. They would then be able to vote massively in favour of leaving the country. But by having the bar high enough, it would also discourage actors from taking the secessionist route in politics. They would perhaps take some other route in order to advance their cause.

That said, at this stage in the game, at 133 years into the country, I don't think one could fix an absolute number of that sort and put it into the Constitution without an agreement of all parties.

Mr. Grant Hill: Of course that is one of the problems. We don't have the agreement on both sides here. One side says that a change in the majority, even if it isn't expressed, is raising the bar. That's a legitimate argument, it's a legitimate debate. If I were framing a constitution, I would never, ever start off with 50% plus one. As you have suggested, you wouldn't either. There is some risk in suggesting that the bar is being changed.

Prof. Wayne Norman: If I could just comment on that, I don't think the bar is being raised. Correct me if I'm wrong, but I don't think the federal governments in the previous two referendum campaigns ever committed themselves to negotiating on the basis of 50% plus one on whatever question was being asked. At any rate, it would have been a matter of discussion amongst the cabinet and amongst the government in the House of Commons as to whether the question was clear and what sort of majority was necessary.

If opinion polls were to show the majority slipping away sometime after the vote, I think that would have affected them. If opinion polls had revealed that, I don't know, say 15% of the people hadn't understood the question appropriately and there had been just a slight majority, that would have affected the situation. The bar was never set at the 50% plus one level in the past, at least not by both sides, so I don't think this is a case of raising it.

Mr. Grant Hill: I've been struck by an issue that was raised when the whole concept of clarity was brought out, and that was that this would inflame separatist passions. I haven't seen that. From my best judgment, there has not been an enhanced interest in separation. I'm interested in whether or not you have any insight into why that has not happened.

• 1950

Prof. Wayne Norman: Well, I live in British Columbia now, and there are two splendid ski hills and a full flight between me and Quebec public opinion, so I'm much less informed about that than you are.

Quebeckers have shown themselves to be as sophisticated and wise and cherishing of democracy and of democratic argument as anybody else in this country or elsewhere in the democratic world. There are a lot of issues about the relevance of clarity of the question to democracy, and of the clarity of the majority for democracy, for this kind of change as well that I think Quebeckers take seriously.

[Translation]

The Chair: Mr. Turp, please.

Mr. Daniel Turp (Beauharnois—Salaberry, BQ): Thank you, Mr. Milliken.

[English]

Just as a comment, the federal actors were never committed to the 50% plus one. I guess some were, but some didn't say they were until after the referendums. In 1980 and 1995, 50% plus one was pretty good to win a referendum, and then they were committed to the rule of 50% plus one. With this Bill C-20, it seems to be going the other way around, you know. They're not committed to 50% plus one beforehand, and they're not saying they're committed to 50% plus one afterwards. There are all these criteria in Bill C-20 that they could rely on not to commit themselves on the 50% plus one.

[Translation]

My question is addressed to a political philosopher. A political philosopher who is not only concerned about legality, but also about legitimacy, is that not right? Some political philosophers also consider consensus to be a way of conferring legitimacy on legislation. I think that Bill C-20 does not have a consensus. It certainly does not have a consensus in this Parliament, since there are two parties opposed to it. It certainly does not have a consensus in Quebec, because three parties represented in the National Assembly are opposed to it and, generally, civil society is also opposed to it.

Therefore, what is a bill worth if it is not based on a legitimacy that it might be given by political parties and other groups?

[English]

Prof. Wayne Norman: Thank you very much for that question.

There are a couple of things there. First of all, you began by talking about what justifications matter to a political philosopher, and it did seem that your criterion for legitimacy was based entirely on terms of popular sentiment. I do think there are other arguments that can be brought to bear on this, and I think there are other arguments that can affect popular sentiment. To some extent, the debate about these issues is just getting going, and it's a healthy debate to be having here, in Quebec, and in other parts of the country.

In terms of the illegitimacy of passing a bill like this through Parliament because there are political parties opposed to it, that's not an unusual thing for bills. Even important bills and acts are subject to partisan approval and disapproval. In particular, on the relevance of the parties in Quebec being against it—that is, the provincial parties in Quebec being against it, as opposed to the BQ—that is somewhat irrelevant in the sense that this is a law for the federal government. It's telling the federal government how it is supposed to act in the future in the interests of the people of Canada that it represents.

The fact that many people outside of Quebec—and probably a majority of federal politicians—were against Quebec language laws was irrelevant from the point of view of whether or not those laws were legitimate in Quebec. In large part, I think they were, and the fact that the federal government or politicians in other provinces were against them was also irrelevant.

[Translation]

Mr. Daniel Turp: You know, when you think about it, one of the arguments invoked to justify that the 1982 Constitution is legitimate is that 72 or 73 of the Quebec members in the House of Commons had voted in favour of patriation and that this legitimacy equalled that of the National Assembly, which had voted against patriation.

• 1955

So the legitimacy argument was based on the representativeness of the Quebec members in the House of Commons for the 1982 Constitution. Therefore if this argument is applied logically to Bill C-20, it will not be legitimate because there will be 50 members of the Bloc Québécois and the Quebec Conservative Party who will have voted against this bill, to which the three political parties of the National Assembly will also be opposed.

We have to be consistent. If legitimacy depended on the representativeness and agreement of the federal members for the 1982 Constitution, the legitimacy of Bill C-20 must also depend on its acceptance or rejection by the Quebec members in the House of Commons.

[English]

Prof. Wayne Norman: I suppose nobody likes to have to talk about 1982 when they have only a limited amount of time. You want to draw a parallel between this and what legitimized or didn't legitimize the enactment or the coming into force of the Constitution Act of 1982. There is a striking dissimilarity that makes it hard for me to know how to answer the question. The Constitution Act of 1982 did have effects on the powers of the National Assembly and domains that were of interest to the parties and the Government of Quebec, whereas this particular bill, as far as I can see, transgresses in no way whatsoever the powers of the National Assembly of Quebec.

[Translation]

Mr. Daniel Turp: That is fine.

The Chair: Mr. Bachand.

Mr. André Bachand (Richmond—Arthabaska, PC): Thank you, Mr. Chairman. I have a question.

Section 1 talks about analysis of the question before the vote, thus during the process and after the vote. Subsection 1 (6) stipulates that the Government of Canada shall not enter into negotiations if the analysis grid does not meet with its satisfaction. There is a prohibition.

Could the provinces negotiate with Quebec?

[English]

Prof. Wayne Norman: If they want to talk, you mean?

Mr. André Bachand: No, I mean negotiation. If the feds decide this because they are bound by the section in the law, can provinces still negotiate in good faith with the secessionist province?

Prof. Wayne Norman: I'm not sure. I haven't thought a lot about that particular scenario, which is interesting. I can't quite envisage it happening. Obviously you're hearing from lots of eminent constitutional experts in these sessions and they can tell you, but it does seem to me that the process that's been laid out by the Supreme Court would involve a constitutional amendment to write a province out of the Constitution. That would require the federal Parliament's approval. You certainly couldn't do something like this all the way through without the feds, but I also have a hard time imagining that the federal government would not want to negotiate and all 10 other provinces would. I really don't have a lot to say about that scenario.

Mr. André Bachand: There are a lot of problems for us in this bill. One of the problems is that if you want a clear question and a clear majority, that's one thing. But if you want to be bound.... For instance, for (a) and for (b), you can have different interpretations of a question.

I think one of the reasons—maybe it's not a reason, but whatever—that the province decided not to be involved in that.... As you know, the Supreme Court opinions stated that it's up to the political actors, plural, to find if the question is clear and the majority is clear. Then they are obliged to negotiate with Quebec. But the problem is that if you put yourself in a situation where you don't have any manoeuvre, where you cannot be flexible enough, I think you have to find an exit. Could the provinces be that exit? I don't know.

• 2000

But again, that's another thing we don't feel comfortable with, that the Government of Canada decided to take upon itself to be the negotiation body, to be the one that's going to analyse the clear question during a process, that's going to analyse the question after the process, that's going to analyse and decide if the majority was clear. The only thing they will do—this is the way this federal government functions—is take it into account, only into account. So that means that the provinces are not important for them, in my sense.

But another question—

Prof. Wayne Norman: If I could just respond to that—

Mr. André Bachand: Yes, but I'm going to ask the question, because the chair will be so mad about me, but he's going to let you speak for sure.

One question that normally the Reform always ask is about partition. What is your say about partition with or without the first nations' point of view?

Prof. Wayne Norman: Well, I alluded to this before in the sense that I think it's a perfectly legitimate and in fact desirable feature of a modern constitution in a diverse society to have a secession clause.

Mr. André Bachand: It's a function of the provinces.

Prof. Wayne Norman: Yes. So were Quebec to secede, I think that the new Quebec state is just the sort of modern plurinational state that should have a secession clause somewhere in its constitution, because secessionist politics will arise in that state and there should be some democratic, legitimate way of deciding victory in secessionist politics. So I think there would be a legitimate role for a secession clause in a future Quebec state. In fact, I think it would be hypocritical for there not to be one.

[Translation]

The Chair: Mr. Patry.

Mr. Bernard Patry (Pierrefonds—Dollard, Lib.): Thank you, Prof. Norman, for your visit.

I have three questions, and I am going to ask them right away. That way, you can answer them all.

In your writings, you talk a lot about the validity threshold of a referendum, which, if I recall, would be a bit greater than a simple majority. Could you begin by elaborating a bit on this notion of validity? Would it actually be the equivalent of more or less a clear majority? That is my first question.

My second is somewhat in keeping with the comments by Claude Bachand of the Conservative Party. Mr. Bachand has told us repeatedly that we would have to await the results of a referendum before deciding on its validity. From an ethical or code of conduct, rather than political, point of view, would it be preferable to reach agreement beforehand on a secession clause or a set of measures and rules? That is my second question. Would it be preferable to agree prior to a referendum on the measures to be taken or to wait for the referendum to be over?

Prof. Wayne Norman: That is, to wait to consider the question?

Mr. Bernard Patry: Yes, exactly.

This is my third question. Mr. Turp talked about referenda and the number of persons in the House of Commons and the National Assembly. Still from an ethical or code of conduct point of view, what is the value of a referendum like those of 1980 and 1995, which dealt with a question that had no consensus in the National Assembly? Would it be preferable, when the National Assembly or any legislature asks a question, for there to be minimum consensus, from the government and the official opposition, in favour of the question?

[English]

Prof. Wayne Norman: I'll take the three questions in order.

You referred to some writings I've done. I should note that most of the writings I've done on secession have been published internationally for an international audience, and they're general background normative theories that would be of use in almost any advanced multinational democracy. So they weren't writings specifically about Quebec.

• 2005

The arguments I've given for the legitimacy of an enhanced majority for secession are things that I've repeated to some extent in here. It's usual in democracies to have some questions, especially amending the Constitution, where you make it more difficult to do that, partly to keep certain questions off the table, to discourage certain kinds of debates from happening. So it's normal to have super majorities for some of those sorts of issues. The issue of secession is, after all, ultimately an issue of constitutional amendment, so it's not surprising that it would have an enhanced majority requirement, given that constitutional amendments generally do.

The second question is about whether it makes sense to examine the clarity of the question before the referendum, or during the referendum rather than after. That's an interesting question that I had never thought very much about before this particular bill. I think in a way it's a bold gesture for the federal government in this case, or the House of Commons, to decide early on whether this was the sort of question that it was going to take seriously and to announce that result in effect during the referendum campaign, in all likelihood. I'm sure there are lots of political considerations in favour of or against that.

One would think in general, from the point of view of democracy, that the better informed voters are about the implications of what they're voting on, the better it is for democracy in general. From a democratic point of view, presumably it's good for voters to have that information rather than to have it kept away from them.

The third question was about the legitimacy of the question. Yes, obviously it would be ideal if all parties of the National Assembly could agree on the question or even if some amendments could be allowed. I was particularly struck in the National Assembly debates for the last referendum question by the diligence with which the Parti Québécois government of the day resisted the inclusion of the word pays before souverain. I don't think one could possibly argue that leaving the word pays out made the question more clear. Maybe you thought having it in didn't make it clear, but at any rate, you would think it would be nice if it were possible for the opposition party to have some effect.

I think the people of Quebec—and there are some polls that you're obviously aware of that point this out—would even be happy to see the federal government or the House of Commons and the National Assembly work together in a relatively non-partisan way to develop a question. I'm sure people would welcome that, and it would be a good thing for democracy.

The Chair: Thank you very much.

We'll now go to Val Meredith.

Ms. Val Meredith (South Surrey—White Rock—Langley, Ref.): You alluded a little bit earlier to whether or not the federal government had any right to partake in determining whether it was a clear question. I have the impression from a number of witnesses, and certainly from some representatives here, that there's a feeling that people like you and me outside of Quebec, in the province of British Columbia, have no business, or have no right, to interfere in this process or be consulted. I thought the Supreme Court was quite clear in its decision that not only was it Canada, the federal government, but also the provinces that would have be involved in the negotiations.

Do you share that interpretation? Do you believe the provinces should also play a part and the first nations should play a part in the negotiations should the yes vote be successful?

Prof. Wayne Norman: There's a relatively simple answer to that, and a more philosophical answer.

The simple one is that the route that's been mapped out for this constitutional process by the Supreme Court ruling is one that involves the negotiated agreement, the result of negotiations, to be ratified as an amendment to the Constitution. I suppose you've heard expert testimony, but I presume this would be in the area of requiring unanimity of the provinces and the federal government to change the Constitution in that way. If that's the case, then presumably it would be folly for negotiations to proceed all the way to the end without taking into account whether the provinces were going to be happy about passing that. But I don't really have much more to say about the modalities of the particular negotiations or how that should come about.

• 2010

In terms of Bill C-20, I don't think it's a step backwards from what the Supreme Court has said. The Supreme Court opinion still stands as guiding constitutional framework for this kind of process.

If I could say something more abstract about it, there's a very special problem about democracy and secession that comes up in a concrete way in your question. This is that democracy at some ultimate level is about the rule of the people, people ruling, and this assumes that in order to have a democratic decision you know who the people are, because the people you've identified as the people involved are the ones who rule and make the decision. But secession is interesting because it's calling into question who are the people. It's in effect trying to change the composition of the people—in this case who are the people of Canada—and create a new state that has the people of Quebec.

So it's hard to settle those two questions at once, in effect. A referendum on secession in Quebec is not like other kinds of referenda, like whether you should have gun control or whether you should have capital punishment, where a government has a referendum to make a decisive say one way or the other on an issue and then it binds itself to that issue. This is much more, as I mentioned before, like a strike vote. This is a referendum in one political jurisdiction that is meant to have some kind of moral force and legal force in some other jurisdiction. And since secession changes the composition of the people of Canada as much as it does the status of Quebec, it's something in which the people of Canada have to ultimately have some kind of say. The Supreme Court framework here has their say through their governments and through negotiations and through passing amendments in provincial and federal legislatures.

But it's an inherently paradoxical process to think up a democratic process for secession. I think all of us around this table, and in the Supreme Court, and in debates in Quebec and the rest of Canada are grappling with some of those inherent paradoxes that make almost every solution some kind of compromise solution.

The Chair: Mr. Pagtakhan.

Mr. Rey D. Pagtakhan (Winnipeg North—St. Paul, Lib.): Thank you, Mr. Chair, and thank you, Professor Norman.

You indicated that when a nation is being founded it could be useful to have a secession clause. My question is, do you see any ethical basis for considering that the quantity of votes required from a people when they are joining a nation should differ in magnitude from that when they are seceding from that nation?

Prof. Wayne Norman: If you have independent former colonies or states, groups coming together—and in a way this is a kind of hypothetical philosophical exercise—to create a country, each of those will have its own constitutional tradition that it interprets in its own way, and each has its own rules for deciding whether it can commit itself to that kind of process or not. So in a sense at that stage, at the prehistory of the new state, what's really important is the constitutional history and traditions of those previously independent units. Once they come together, then they start to create traditions and history, and precedence and that sort of thing, together. In some cases they might decide explicitly to bind their hands in certain ways by having, for example, a difficult constitutional amendment formula or a difficult secession procedure, but there's no necessary link between the two because they're different political entities.

• 2015

Mr. Rey Pagtakhan: The last question, Professor, relates to the enhanced majority that my colleague Andy Scott alluded to earlier. You alluded to the idea that in a constitutional change there is a likelihood of requiring higher than a simple majority. So my question is, is it because—and I'm searching for the ethical basis—you are changing the being of the nation that was there before the secession, or is it because you are putting to a test a collective sense of responsibility to the existing nation that has developed over the years and decades following that formation?

Prof. Wayne Norman: This is not for just a normal constitutional amendment procedure, but for a secession procedure. I think there are multiple grounds for why it would make sense to have an enhanced majority, but among other things, I could say that I'm a member of a school of theorists about secession who believe that ultimately secession is morally justified only in otherwise just democratic states...or is justified only when there is, in effect, just cause—when there's some kind of oppression or systematic exploitation, or perhaps where the federal bargain has been broken in some way. So you need just cause to secede from an otherwise just democratic state.

The problem is there's no independent judge we can call upon to say “Oh yes, this group has just cause to secede. Let them secede.” The only way you can settle those kinds of issues in a democracy is ultimately with some kind of electoral referendum-like participation. But it doesn't hide the fact that in some sense it's highly regrettable when otherwise relatively well-functioning, relatively just, democratic multination states break apart.

The world has something like 5,000 ethnocultural groups in it, and about 200 states, and 90% of states have more than one major ethnocultural group in them. We can't envision a world in which all of those groups would have states of their own without imagining the worst kind of Yugoslav nightmare spread all around the world. This means that there has to be different peoples, different ethnocultural linguistic groups, sharing states. And if we're going to say in the international community that we want further democratization in the world—and this really requires that peoples of different ethnocultural groups work together in the same state—we have to be able to show shining examples, like Canada, Belgium, Spain, and the United Kingdom, etc., where this does happen.

I think for states like this to show that even when there's no hatred, even when there are tolerant democratic communities, you can't ultimately have people of different languages functioning in the same state is a moral tragedy in terms of what the western democratic world can set up as a model for the rest of the world.

The Chair: I'll just take one quick question to finish, I'm afraid. It will be Mr. Turp. One question, and a short one.

Mr. Daniel Turp: I'm afraid it's going to be Mr. Turp, yes.

The Chair: It's going to be very short.

Mr. Daniel Turp: Yes, Mr. Chairman. It will be on enhanced majorities and the 50%-plus-one vote. But beforehand, I really would like to quote something that will be published in tomorrow's paper.

The Chair: A question, please. I'm doing this as a favour, because there are several people who wanted to have another question. If you want to read, I'll put one of the others on. There are three other members who want to ask questions, but our 45 minutes are gone.

Save that for later.

Mr. Daniel Turp: Do you really want me to save it for later?

The Chair: Yes.

Mr. Daniel Turp: Regarding enhanced majorities and 50% plus one, you said that because it's a constitutional amendment enhanced majorities are justified, even in this case. Well, in this case, according to the Supreme Court, there is an enhanced majority because the constitutional amendment mechanism would apply. And that sounds like enhanced majority—7 and 50 or unanimity.

• 2020

The issue is a referendum. When a referendum is organized, when you go directly to the people, that's when the 50%-plus-one rule is universally applicable, except maybe in the case of St. Kitts and Nevis, or in the case of the U.S.S.R., if you think that's a good example to quote. So there is a difference between constitutional amendment and referendums, and I think the universal rule of 50% plus one is very legitimate in that case, where we go to the people.

The Chair: There is the question.

Prof. Wayne Norman: The secession of a territory from a democratic state is surely as major a change to that country as virtually any other kind of constitutional amendment that could be carried out. So one could give similar sorts of reasons to the bank of reasons that are standardly given for why super majorities would be required for constitutional amendments: it's a grave decision; there's no going back; one wants as much as possible to keep this out of the stakes of day-to-day, week-to-week, year-to-year politics. All of those sorts of reasons would also work in favour of having an enhanced majority for this.

But one has to remember again, even as I understand it in the referendum legislation in Quebec, there is no figure put on it, because the point of the exercise is to show the strength of the democratic will for a certain kind of change, and the more strength there is, the more effective it will be when you move to the next round of negotiations, the more democratic legitimacy that negotiating point will have. It's not like a referendum on capital punishment or gun control, where you settle an issue. It's a referendum that is meant to take you and make some other body that wasn't even involved in the referendum do some action in your favour, and that's a very different kind of situation.

The Chair: Professor Norman, I want to thank you, on behalf of the members of the committee, for your appearance today. We appreciate it very much. I know from the questions that your testimony has been very helpful to the members. Thank you very much.

Prof. Wayne Norman: I thank you very much.

The Chair: Our time has expired.

• 2022

• 2026

[Translation]

The Chair: Order, please.

[English]

Our next witness is Mr. Roger Gibbins, president of the Canada West Foundation.

Mr. Gibbins, thank you very much for taking the time to appear. I would guess you've travelled some distance. We're delighted to have you here tonight, and we look forward to your testimony. As you may be aware, you have 10 minutes to make a presentation and then there will be 35 minutes of questions from the members.

Thank you for coming. You have the floor.

Dr. Roger Gibbins (Individual Presentation): I'll ask the members of the committee to excuse my voice. I seem to have lost it completely.

I will make a short presentation. I will take no more than 10 minutes. Copies of the presentation are available, and my credentials, such as they are, are listed on the back of that presentation.

Let me begin by thanking the committee for this opportunity. I'd also like to stress by way of introduction that I am appearing before the committee as an individual. I'm not speaking on behalf of the staff or the council of the Canada West Foundation. I will, however, try to give a western Canadian perspective on the clarity bill. My analysis, as you'll see, will be more political than it will be legal in character.

The first point I would make is that the principles of Bill C-20 are very much in tune with the political landscape in western Canada. Western-based political parties have long called for the imposition of predictable rules for sovereignty referendums in Quebec, and my organization argued for the same in 1996. Thus the intent of the clarity bill should enjoy broad political support in western Canada. It will be seen as evidence that the federal government has finally come around to western Canadian perspectives on the ongoing national unity debate.

I would argue there's also broad support for the principle that the Canadian political community should play an active role in setting the terms and conditions and responding to the outcome of any future Quebec referendum. If western Canadians are likely to stand apart on this matter, it will come through the conviction that the people should be directly involved. There is less faith that parliamentary institutions and/or the national government will adequately reflect regional opinion. Nevertheless there is agreement that the matter is too important to be left to Quebec alone, that all Canadians must have a say.

The timing of the clarity bill has met with some puzzlement but little opposition in the west. Certainly the bill's introduction has not inflamed a dormant national unity debate in the region.

The clarity bill therefore should encounter a relatively supportive environment in the west, where it will be seen as roughly congruent with regional perspectives on the constitutional role. However, it's important to note that support for the general principles of the clarity bill should not be equated with sustainable support for its specifics.

There's a strong possibility that western Canadians assume the clarity bill goes much farther than it does. It would not surprise me, for example, if western Canadians believed the bill both defines the question that might be posed to Quebeckers and sets the threshold at which a Quebec vote would trigger a response from the Government of Canada. Bill C-20 falls short, perhaps well short, of public expectations in these respects. Neither does the bill specify who would negotiate with Quebec should negotiations occur.

• 2030

Finally, western Canadians would be surprised, and quite probably upset, to discover that the clarity bill provides no room for provincial governments, other than the vague statement that the views of the provinces and others will be, and I quote, “taken into account”. Framing a response to a successful Quebec referendum is not something western Canadians would be prepared to entrust to the federal government or to Parliament.

All of this is not necessarily a criticism of the existing bill, which after all only takes us a short distance down a very hypothetical road. It simply suggests that when and if the specifics of the bill are identified—when, for example, a threshold is defined—it cannot be assumed that western Canadians will be onside. To see regional support at this moment as a blank cheque for the future would be a mistake.

I'd now like to turn to a number of potential problems relating to the bill's commitment that a referendum in Quebec, should it be held on a clear question, would require a majority greater than 50%, and quite likely much greater than 50%, before it would trigger a negotiating response from Parliament and the federal government.

Although I would anticipate initial regional support for the supra-majority requirement, it opens up a very troublesome scenario for the west, in which a sovereigntist government in Quebec secures more than 50% of the vote on a referendum but not a large enough majority to trigger a negotiating response. Why would such an outcome be problematic for the west? Let me quickly mention three concerns.

The first is the prospect of a damaging stalemate. Western Canadians would have little stomach for such a stalemate and would likely urge that negotiations begin. Once the 50% benchmark is surpassed, the political mood in the west will fundamentally change, and will likely change in ways unconstrained by the provisions of the clarity bill.

The second and related concern is that a threshold greater than 50% may encourage yes votes in a Quebec referendum by suggesting that voting yes will have little practical consequence; Ottawa will simply not respond. Thus a yes vote could become little more than a means to show solidarity with Quebec and/or an interest in constitutional reform. Outside Quebec, however, perceptions of a yes vote could be quite different. It could be seen as a way to lock the country into a never-ending national unity debate, a debate for which western Canadians have less and less tolerance.

All this means, I suggest, that upon reflection, there would be considerable regional support for a threshold of 50%, a threshold where every vote would count and where the sovereignty vote would not be inflated by the expectation that the referendum was in essence a free vote. Ottawa may well be prepared to dismiss a yes vote, but the west is less likely to do so.

The third concern is that it may be difficult to sell a supra-majority within the populist culture of the west. There is a certain magic and democratic legitimacy to 50% that other thresholds lack. It is difficult, for example, to find democratic precedent for thresholds such as 60%, 65%, or 70%. Therefore, upon reflection, western Canadians may fall back on the 50% threshold, one that is consistent with the populist spirit of the region.

The main point to stress is that a situation in which the majority of Quebeckers voted to radically restructure the Canadian federation but where the federal government refused to respond would not be tenable for long in western Canada. It would be seen by many western Canadians as a way to ensure that every public policy issue is passed through the filter of potential sovereignty support in Quebec.

Given a vote even minimally in excess of 50% on a reasonably clear question, my guess is western Canadians would say “Enough is enough” and urge that negotiations commence, regardless of the provisions of the clarity bill. What I'm saying is political dynamics in the west will not be constrained by the clarity bill.

• 2035

It's not at all clear, of course, just what a clear question might be. Western Canadians probably support the proposed prohibition on double-barrelled terms such as “an independent Quebec in an economic partnership with Canada.” As things now stand, there's little appetite in the west for a question that presupposes any specific response from the rest of Canada, including a willingness to pursue an economic partnership. The point is not that western Canadians would necessarily be opposed to a variety of economic and political relationships with an independent Quebec; there's simply an unwillingness to have others presume what the regional response might be.

In drawing this brief presentation to a close, let me mention one other potential problem. As you're well aware, the Supreme Court reference case to which the clarity bill responds is not Quebec specific. It sets out a discussion as to how Parliament might respond to any provincial referendum designed to trigger constitutional change. Thus, for example, the Supreme Court reference case opens the door for an Alberta referendum on Senate reform.

The question, then, is whether the clarity bill provides a suitable template for constitutional referendums originating outside Quebec and designed to initiate constitutional reform rather than the breakup of the country. How would Albertans feel about a principled template in which Parliament might set the question and determine the threshold for a provincially led referendum on institutional reform? My guess is that Albertans would not be pleased. This suggests, then, that if the clarity bill is seen as a precedent that might apply to all provincially initiated reform proposals, it might enjoy less support in the region than it would if it's perceived to apply only to referendums designed to terminate rather than improve the Canadian federation.

In summary, the principles and intent of the clarity bill are likely seen in the west as movement by the Government of Canada to bring itself into line with long-standing western Canadian opinion. Thus the clarity bill should enjoy relatively strong support that stretches across all major partisan divisions in western Canada.

At the same time, there are concerns about the specifics of the bill. Western Canadians quite likely believe that the bill goes farther than it does. The bill also sets threshold conditions that will be problematic for the west. The failure to explicitly accommodate provincial governments in the proposed negotiating process and thus to recognize the federal character of the country would be vigorously contested.

Finally, there is a concern—and this is perhaps a more personal concern; I can't report on the region—that the clarity bill will be used as a template to shut down rather than encourage constructive constitutional reform initiatives from outside Quebec. If so, then the bill would be an inappropriate response to the Supreme Court reference case that initially set the bill in motion. If the clarity bill, by intent or consequence, reinforces the status quo, the long-term support in western Canada cannot be assured.

Thank you. I'd be happy to respond to any questions.

The Chair: Thank you very much, Mr. Gibbins.

Mr. Jaffer, you have the floor first.

Mr. Rahim Jaffer (Edmonton—Strathcona, Ref.): Thank you very much, Mr. Chairman.

I have two questions, one of which addresses the issue you raised about participation of the west. But I think we've been concerned to some extent in the opposition that even though we support this bill in principle, there hasn't been enough consultation with the rest of the country, especially with western Canadians. One of the things that I think you've touched on is that this is very important in the west, and many Canadians feel that they would like to have some input.

My first question is how would you have improved this process to some extent, or potentially even the legislation, to have that input included from Canadians in the west or Canadians all across the country more effectively?

Dr. Roger Gibbins: Let me back into a response.

I think the participation of western Canadians in this process could be important because at the present time the clarity bill is scarcely on the radar screen in western Canada. It's not part of what's being debated or talked about. I think there's a danger that the clarity bill will be passed without any significant public education in the west as to what the bill was intending to do. Therefore, my concern is there will be an assumption that there is broad support for the bill when really people have no idea what's going on with it. So I think there's an opportunity for that form of public participation. There is an opportunity for broader hearings on this. It's hard to understand from the west what the rush is in this process.

• 2040

Mr. Rahim Jaffer: We'll find out. Unfortunately, it seems that the committee is going to be shut down this week. But this is something we've been trying to encourage, because we think westerners do have a significant voice and input on this.

My other question is concerning the issue you raised about other potential constitutional changes that could be included in this particular legislation. You raised the example of Senate reform in Alberta. I think I would agree with that, and I'm curious as to what possible amendments or changes to that legislation you would suggest in order to make this a little bit more of a comprehensive bill.

Dr. Roger Gibbins: I'm not sure whether I would recommend amendments to this particular bill or whether I would suggest that it be very carefully identified as a bill that relates to a specific set of circumstances. My concern is not that the clarity bill, as it stands, would be applied to a referendum emerging in Alberta or somewhere else, but rather that it would be seen as a set of principles that would be transferable to a referendum on another issue arising from another part of the country. If something could be done to wall off that possibility, I think it would make western Canadians more comfortable. As it stands right now, it appears that if this is a set of principles that might govern other kinds of referendums, it could be an extraordinarily restrictive set of principles in terms of constitutional reform initiatives from elsewhere.

Mr. Rahim Jaffer: I have one last question.

You touched also on the issue of a clear majority, a couple of different scenarios, especially when it comes to the reaction from western Canadians. One of the questions on which we've been asking witnesses to give us their opinion is whether or not that percentage or a clear majority of 50% plus one, or whatever it might be, should be set out within this legislation ahead of a referendum, or whether circumstances need to be determined after a referendum, both after the question has been constructed and...? What would your feelings be on that? Should we determine that prior to a referendum, or should it be left until afterwards?

Dr. Roger Gibbins: My own thinking on this is that clarity suggests that the rules should be set down before the question is formed and before the vote takes place. My sense is that people in my part of the country assume that this is probably in the bill, that the bill is already doing this, and would be surprised to find that it's not being done.

If I can expand briefly on a second point, I believe western Canadians would begin with the viewpoint that to break up the country requires some extraordinary standard to be met, but, on second thought, will conclude that an untenable situation is a situation where a majority of a province votes to go and there is no federal response and therefore we're into this awful stalemate. My suspicion is that the newspapers in western Canada, the day after this referendum were to occur, if it were 51%, or 52%, or 55%, would say we're now in a fundamentally different ballgame and we have to respond to that regardless of what the clarity bill might say.

[Translation]

The Chair: Mr. Turp.

Mr. Daniel Turp: Thank you, Mr. Chairman.

[English]

This morning we had a witness who asked a question to one MP. The question was how he would react if Quebeckers voted 50% plus one in favour of sovereignty after being asked a clear question. The MP, who unfortunately is not here now, said, and I quote: “I personally would say, if the question was that clear, that we would begin a process of negotiation.” The journalist asked that before he was cut off by the committee chairman.

• 2045

If you were asked that kind of question, Mr. Gibbins, a clear question, would you begin a process of negotiation?

Dr. Roger Gibbins: It's not a question I would confront, being very much an outsider in this. What I would say is that my reading of western Canadian sentiment, a reading that goes back over 20 or 30 years, would be that if there were a vote of 50% plus one, there would be a great deal of hesitation in the west about going into a prolonged process of trying to woo that extra person back to the federal side. Instead, the mood of the region would change in a rather fundamental sense. If there were 50% plus one, people would say “Let's move on. Quebec has spoken. Let's sort out where we stand right now and let's simply move on with our lives.”

Mr. Daniel Turp: If I understand well, Mr. Gibbins, you have a constitutional amendment act in Alberta. If this has to proceed through a constitutional amendment, according to the formula that exists in the current Canadian Constitution, whether it be the 7 and 50 formula or the unanimity formula.... When the Albertans are consulted on this amendment to allow secession of Quebec, I think the rule that would apply would be 50% plus one. Is that correct?

Dr. Roger Gibbins: I don't think it's quite correct. My understanding—and I stand to be corrected—is that the provincial referendum that would be required is an advisory referendum on the provincial legislature. Therefore it's not entirely clear how the provincial legislature might interpret a vote that was extremely close. I'm not sure the legislation firmly ties the hands of the provincial legislature in that way.

Mr. Daniel Turp: Just for the record, I would say that under our constitutional system, no referendums define governments. Under the Alberta amendments act, the majority mentioned is 50% plus one, which also is the case in Alberta.

Dr. Roger Gibbins: That's right.

Mr. Daniel Turp: That seems to be an acceptable rule to bring about a government to seriously consider the views of the people. I would think Albertans would look to their government to implement their view if 50% plus one of Albertans have decided to go along with the constitutional amendment to allow Quebec to become a country, wouldn't you?

Dr. Roger Gibbins: Yes. The only point I was trying to make is that I think there might be some wiggle room if the vote were extraordinarily close. That's all I'm saying. If Alberta, for example, were the only province not to assent to a constitutional referendum and the vote was 51% to 49%, it's not inconceivable in my mind that a provincial government might side with the minority on that. It would be very difficult to do.

Mr. Daniel Turp: So in this particular case, if Alberta did not give its support to that amendment, it would probably prevent Quebec from becoming a country.

Dr. Roger Gibbins: I suppose so, yes.

The Chair: Mr. Bachand.

Mr. André Bachand: Thank you, Mr. Chair.

I would speak to you in English but my other mother tongue will be easier for me.

[Translation]

Two elements come up often and are important for us. We are opposed to Bill C-20, and you have pointed this out clearly. I must say that your presentation is refreshing. In fact, for many, the role of the provinces may not be important, but for me it is. You mentioned this. You are one of the few to do so. Many have disregarded this aspect, saying that in any case they would be there later, when negotiations took place.

To my mind, and in the opinion of the party I represent, this is inconsistent with the opinion of the Supreme Court. Once again, thus, we are dealing with a central government that decides and takes care of everything. The central government tells us not to worry, that it will decide, during the process, taking into account our opinion, if the question is clear, that it will consider later if the majority is clear, and that later it will agree to let us negotiate. It tells us that we do not have any power, which the Supreme Court tells us we have.

• 2050

The provinces have been warned to rebel against this situation again. This being said, it has not happened.

This is a comment I wished to make, Mr. Gibbins, which I thought was important.

My other point concerns a question that you raised, namely that it might be good to have a few more Plan As in this way of reforming the Constitution. The Supreme Court says, moreover, in paragraph 88, that a partner in Confederation may take the initiative in constitutional reform, such as the one on secession, which is a major constitutional reform, and that that entails the obligation to negotiate for the others.

Between you and me, Mr. Gibbins, this is the first time the Supreme Court has said that secession or another initiative is a constitutional reform. It implies other initiatives to reform the Constitution. If the Province of Alberta holds a referendum on a constitutional reform concerning the Senate, if the question is clear and if there is a clear majority, according to the opinion of the Supreme Court, this creates an obligation for all political players to negotiate.

A voice: That is right.

Mr. André Bachand: What I am telling you is that this is good news. I do, however, probably agree with you that perhaps it does not apply to a bill on secession, which is all crooked.

What I can say is that if ever, in the West, you decide to make some constitutional reforms, do so by referendum, with a clear question and with a clear majority. The people of Quebec will be there to ensure the clarity of the clear majority with you and, automatically, the other partners will be forced to negotiate, which you do not have at present. And that, for me, is good news.

These were mainly comments, Mr. Chairman. I am going to let Mr. Gibbins reply. But I can tell you that, for us, only on the role of the provinces, it is important to oppose the Bill if it cannot be amended.

Here is another point. With this Bill, Mr. Gibbins, are you saying that the federal government is intervening in a process undertaken by the province, and this could cause discord, a dichotomy in the provincial referendum process, which might affect secession, the Senate or anything else?

So I am telling you that what you have raised is true and that I hope the people from throughout Canada, the Maritimes, Ontario or the West, are going to listen to you. I will end my comments on that.

Thank you, Mr. Chairman. Thank you for your generosity.

The Chair: The witness has only one minute to reply.

[English]

Dr. Roger Gibbins: I'll be very quick. My understanding of the clarity bill is that it's designed to bind the federal government in the way in which it responds to a referendum in Quebec. The clarity bill has no impact on how provincial governments would respond.

The second point is that Albertans do believe the Supreme Court reference case opens up the possibility for provincial referendums. It's not clear that this view is shared by the federal government at the present time.

The other question, then, is whether the clarity bill sets a precedent for referendums that might be held in other provinces. My hope is that it does not, because it would be seen then as a very onerous constraint on any kind of positive constitutional reform initiative.

[Translation]

A voice: It is Mr. Guimond.

The Chair: Not yet. The witnesses from all the parties have not spoken yet.

[English]

Mr. Cotler.

Mr. Irwin Cotler (Mount Royal, Lib.): Mr. Gibbins, I must tell you I don't follow the analogy on how a bill that sets a code of conduct on secession can be used as a template to shut down constitutional reform initiatives outside of Quebec. You could make the reverse argument that legitimating a code of conduct for secession might trigger a more responsive approach in Alberta to constitutional reform initiatives. I don't think there's a kind of inevitability about this. It seems to me that the dynamics can go either way.

• 2055

Dr. Roger Gibbins: I would agree that there is nothing inevitable about that. I would agree with that completely.

My concern is only that the clarity bill may then be held up as a precedent in terms of how the federal government or Parliament might respond to a referendum held on another issue in another province. I don't think it's inevitable that this would be the case.

All I was saying is that if you want to ensure political support in the west, that's perhaps an argument that should be made. I'm not suggesting by any means that at the present time people are sitting around in coffee shops in Calgary sort of chewing this over.

The Chair: Mrs. Redman.

Mrs. Karen Redman: Thank you, Mr. Chair.

I have a question about the 50% plus one. Clearly in the last two referendums we learned many things. When the response was analysed by Pierre Martin and Richard Nadeau, they found that voters' intentions changed dramatically after the referendums and that indeed 20% of the voters could be influenced if incentives were offered. So my question is, if you're going to adhere to the 50% plus one, how long does that hold for? How long is that a relevant response where we can rely on the voters stating what they think?

Dr. Roger Gibbins: I fully recognize the mixture of emotions, lack of knowledge, and intensity voters bring to a decision. It's not surprising to me that in the last referendum 20% of the voters who voted yes might have voted differently under different circumstances.

I'm trying to articulate a regional view that I think is accurate, and my sense is that if you went to Calgarians or even worse, perhaps, British Columbians—

Some hon. members: Oh, oh!

Dr. Roger Gibbins: —the day after a referendum had been narrowly passed in Quebec and said, “Look, let's stop and consider what we could do to win back that transient majority, because we've found that 20% of the people might have voted differently under different circumstances”, there would simply be no appetite for doing that. The response would likely be, “But we spent 30 years trying to firm that up.” To go back to the west and suggest that we go at it for another 30 years and try to bring that tide back would be extraordinarily difficult. That's what I mean by suggesting that the political mood of the region would change quite dramatically if there is a successful vote.

Therefore, what I would like to convey to Quebeckers is that the 50% threshold is a very real psychological one. People will interpret it in a particular way. Therefore, you must keep that in mind, and keep in mind that every vote counts, because the dynamics will change.

Mrs. Karen Redman: Bill C-20 clearly deals much more with the qualitative rather than the quantitative. If the question is clear, if we look at the type of majority and the distribution and demographics, surely that is compelling to Canadians.

Dr. Roger Gibbins: It may or may not be. I remember sitting with about 100 students during the 1995 referendum when it sort of swung back and forth and back and forth, and I remember very clearly the emotional dynamics of that room. My clear sense was that if at the end of that night it had been a 51% to 49% yes vote, they would have left that room with their views changed about the future of the country. If there's a belief that in a referendum held in Quebec 55% or 60% of Quebeckers could vote to leave Canada and no one in the rest of the country would take that seriously, I think that would be incorrect. My sense is that western Canadians would take that very seriously and would change their minds.

• 2100

I'm not sure if they'd be open to that more subtle demographic analysis you've been suggesting, because it would take a while for that analysis to emerge, and the political opinion might veer off in a different direction before that.

Mrs. Karen Redman: [Inaudible—Editor]...opposed to the other things set out in the clarity bill.

Dr. Roger Gibbins: Yes.

The Chair: Madam Meredith.

Ms. Val Meredith: Thank you, Mr. Chair.

As a British Columbian, I'm not sure I like the inference that we're worse than Calgarians.

Some hon. members: Oh, oh!

Ms. Val Meredith: I'd like to assure you that the official opposition did make an attempt to get provincial responses to the clarity bill, and we felt it was very important that all provinces have the ability to appear before this committee. We were not terribly successful because of the time restraint.

There seems to be a little bit of inconsistency in your responses. You stated that 50% plus one would change the political mood of western Canadians and that they would be less willing to look at anything other than that it's time to move on. Then during a dialogue you had with Mr. Turp you seemed to infer that if it were close, it was quite possible that the decision would prevent Quebec from separating. If it were 49% to 51%, even a 49% might prevent Quebec from separating. I find that inconsistent. Can you explain what you meant?

Dr. Roger Gibbins: I made it inconsistent in a whole variety of ways, but I don't think I did so on this particular point. What I was saying was that if a referendum were held in Quebec that was 50% plus one, it would have consequences for the political mood in the west.

Mr. Turp's question was somewhat different. It was, if the Alberta government held a referendum to ratify some decision coming out of a Quebec referendum and the vote was very close, would the Alberta government nonetheless be bound by the outcome of that vote? My suspicion is that the Alberta government would take advice from the people of Alberta and would then have to fold that into its understanding of what the national landscape was, and that it's not inconceivable that a premier of Alberta would say “Only 48% of Albertans have voted to approve this constitutional settlement, but I feel in my heart that, nevertheless, the Alberta legislature should vote to approve this.” That's all.

So they're two very different scenarios. I think my inconsistency is elsewhere.

Ms. Val Meredith: I thank you for the clarification, because it seemed as if you were saying that 50% plus one was okay in one instance but that it wasn't going to hold true in the other instance. So I needed that clarified. Thank you.

[Translation]

The Chair: Mr. Guimond.

Mr. Michel Guimond: You will have realized that my colleague Mr. Turp was quoting a while ago an article by the journalist Jennifer Ditchburn, titled: Liberal MP would support majority in Quebec referendum, which will appear tomorrow.

• 2105

I also have here an article by another journalist, which will appear tomorrow, with the title: Lisée plonge les Libéraux dans l'embarras. It is written by Alexandre Sirois, a journalist who faithfully attends the meetings of our committee and spends numerous evenings listening to our deliberations.

The Chair: Order. Mr. Guimond, I have a question for you.

Mr. Michel Guimond: My question is for Mr. Gibbins.

The Chair: [Editor's Note: Inaudible]... for part of your speech.

Mr. Michel Guimond: You are trying to distract me, Mr. Chairman. You are going to prevent me from reading right to the end of my quotation because you are named in it. Out of respect...

The Chair: This is not a reason for quoting it. I prefer to ask questions.

Mr. Michel Guimond: I would like Mr. Gibbins to give us his opinion on this article which will appear tomorrow. You have a chance to comment on it before it appears. This is an extraordinary opportunity.

In this article, the Ontario member Dennis Mills retorted that he considered that the Bill did not exclude the possibility of a majority of 50% plus one being acceptable if the question were clear, thus departing from his party's line. Mr. Mills then affirmed that his community did not think that the Bill would prevent Quebec from separating.

Later the article contains a quotation by Mr. Mills himself:

Personally, I would say that if the question were also clear, we would begin..., stated Mr. Mills before being rudely interrupted by...

Voices: Oh, oh!

Mr. Michel Guimond: I think I will finish what I was saying, because I find it hard to stop myself.

... before being rudely interrupted by the chair of the committee, the Ontario Liberal member Peter Milliken. Mr. Milliken switched off his colleague's microphone and quickly gave the floor to another Reform member.

I would like to hear your comments on that, Mr. Gibbins.

[English]

A voice: That's a political question, so be careful.

Dr. Roger Gibbins: Let me begin by saying that I think the translation service did not fully capture the spirit of your remarks, so I'm simply not clear about what I'm responding to. I think it would be best not to respond to them. My apologies, but they simply didn't come through clearly enough that I know what the issue is.

[Translation]

Mr. Michel Guimond: Mr. Gibbins, do you think that your Canadian West community is of the opinion that the Bill prevents Quebec from assuming sovereignty? These are my words, this time.

[English]

Dr. Roger Gibbins: Do I think the bill will stop Quebec from achieving sovereignty?

Mr. Michel Guimond: Yes.

Dr. Roger Gibbins: You couldn't ask a more inappropriate person for insight into Quebec or Quebec dynamics than me. They're simply something I don't know about. What I would say, in line with my earlier comments, is that the clarity bill starts with the admirable intent of imposing some order on a political world that is probably not going to be orchestrated by the conditions of the clarity bill. I think it's an attempt to make an uncertain future predictable.

My reading of the western Canadian landscape is that the political dynamics are so fluid and so volatile that the legislative constraints that the clarity bill might impose will not be very effective in containing or directing political and public opinion in the west. I guess the same sort of argument might apply to Quebec. There are dynamics within Quebec that I don't pretend to understand, and I'm really not the person to comment on whether the clarity bill modifies or changes those dynamics in some fundamental way. I just don't know.

The Chair: Mr. Pagtakhan, one question, and that'll end it.

Mr. Rey Pagtakhan: Could I get two short ones?

The Chair: Well, ask both at the same time if they're very short.

Mr. Rey Pagtakhan: You made a submission that 50% plus one could change the mood of western Canadians following a vote in the referendum, but of course your experience has been based on events of the past, by definition—that is, before the Clarity Act was there. Is it not possible that following the passage of the Clarity Act, when it is clearly spelled out that 50% plus one will not be sufficient, the mood would not change because there is clarity on that point?

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Lastly, when you evince the sentiment of western Canadians in many aspects during your presentation, and at some point towards the end you say it is your own observation, how do you distinguish between the two, between your own personal view and the view of western Canadians? Have you done recent polls?

Dr. Roger Gibbins: Those are two excellent questions.

In terms of whether or not the clarity bill could in fact change the character of western Canadian opinion, my sense is that it has that potential, but only if it is used more aggressively as a tool of public education than is presently the case. So yes, I think I've been talking about things based on the past. Yes, the clarity bill has that potential. It has to be used effectively, though, and it doesn't have that kind of profile to achieve those ends at this point, but the potential is still there.

Secondly, it is difficult for me to separate my own views from my own academic and professional training. All I can say is that I have lived in the region all my life, and I have taught in the region since 1973, but I have not done recent polling on this issue. In fact I didn't even have time to canvass my own council, because the invitation came so late. You have to accept, I guess, that there is some blurring between speaking for myself and speaking for what I think is an objective portrayal of the west. I hope I have portrayed that, but I recognize that the boundaries are not very clear-cut.

Mr. Rey Pagtakhan: Thank you.

The Chair: Mr. Gibbins, thank you very much for your attendance today, sir. We appreciate the short notice on which you came. On behalf of all the members of the committee, I'm sure we have found your testimony very helpful to our work on this bill.

[Translation]

Mr. Michel Guimond: I would like to speak.

The Chair: Very well. Just a minute! Perhaps we can wait until the witness leaves. I will stay here, ready to resume deliberations.

A voice: Perfect.

[English]

The Chair: Okay, now that the witnesses have left, maybe we can get started here.

[Translation]

Mr. Guimond, you have the floor.

Mr. Michel Guimond: Thank you, Mr. Chairman. Before I begin, I appeal to the sense of democracy of my colleagues in the Liberal majority not to invoke....

Mr. Bernard Patry: He says that it is anti-democratic and then he appeals....

Mr. Michel Guimond: You know, Mr. Chairman, that I wish to talk about the closure motion made on Monday afternoon, which I consider to be anti-democratic and therefore unacceptable.

I appeal, Mr. Chairman, to the sense of democracy of my colleagues opposite. I know they are great democrats, that they were elected, like me, democratically, and I would ask them to avoid stopping me from speaking and avoid recalling a quorum for a third time since Monday afternoon.

Mr. Chairman, I have attempted to take the floor several times. I spoke Monday on this motion from 2:30 to 3:45 p.m. and from 9:20 to 9:55 p.m., and today, Tuesday, from 3:05 to 3:15 p.m. and from 6:05 to 6:20 p.m.

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I appeal to the sense of democracy of my Liberal friends opposite to ask them quite sincerely to let me speak until 3:30 p.m. Tuesday. That is the day when we hear the next witnesses. The only time we will be able to speak is when the next witnesses are heard.

Thus, I am convinced that my colleagues are going to think about it seriously before having the Parliamentary Secretary to the Minister of Intergovernmental Affairs raise the matter of a quorum.

[English]

Mr. Reg Alcock (Winnipeg South, Lib.): And the president of the Queen's Privy Council.

[Translation]

Mr. Daniel Turp: Is he supposed to come, Stéphane?

The Chair: Yes. It is true, he is the President of the Queen's Privy Council.

Mr. Reg Alcock: It is not fair that....

Mr. Daniel Turp: But he is not a member of our committee. I would like it if he were.

Mr. Michel Guimond: I was just talking with my colleagues about the Calgary Declaration. Many experts have seen this emphasis on the equality of the provinces as a wish to provide a framework for recognizing unique character in order to strongly limit its effect. In addition to this framework, there is a reluctance to define unique character, comparable in this respect to the Charlottetown agreement, which was rejected by Quebeckers, regarding the institutional aspect of the Quebec situation, a nevertheless important aspect of the definitions of the distinct society concept formulated in Quebec.

Quebec's Premier, Lucien Bouchard, expressed his opinion on the declaration with respect to the matter of recognition of the Quebec people. On December 16, 1997, he stated in this connection:

Is there, in this document, a recognition of the existence of the Quebec people? I think this is the saddest aspect in the history of relations between Quebeckers and Canadians. And when people ask in a few years why these two peoples were unable to go on living under the federal system, they will be told first and foremost that there was a lack of respect and recognition: they will be answered that one of these two peoples refused to recognize the existence of the other.

Mr. Bouchard continued with:

Why is it so difficult for our Canadian neighbours to use, when they talk about us, the words that we deserve as much as any other people on Earth?

Among our neighbours, there is a visceral refusal to treat us on the same footing. Each decade and each year that passes seems to harden this refusal. And the more the Quebec people is strong, vibrant, economically strong, the less our neighbours wish to recognize us.

Now I would like to talk to you about the federal reference on Quebec's right to assume sovereignty. From 40.44% in the 1980 referendum, support for sovereignty in Quebec rose to 49.42% in the 1995 referendum. This spectacular leap would worry the federal government. It would react by trying to bend the process in its favour by asking the Supreme Court of Canada to give a ruling on Quebec's right to assume sovereignty unilaterally if the results of a third referendum were to turn out positively.

For its part, the Government of Quebec refused to debate these questions before the Supreme Court since they involve a fundamental political issue over which the courts have no jurisdiction and only the Quebec people is qualified to determine by means of a free and democratic referendum.

In the brief he submitted in February 1997 to the Supreme Court, the Attorney General of Canada alleged that Quebeckers did not form a people and that they should be considered rather a linguistic minority within the Canadian people, which is the only one entitled to enjoy the rights and privileges associated with this status.

Refining his arguments, he pleaded in an addendum to his brief that if Quebeckers can claim to form a people in the sociological, historical and political meaning of the term, this can be only for the sole purpose of exercising their rights within the Canadian federation.

A response to this allegation came from an influential federalist intellectual from Quebec, Claude Ryan—who appeared before us—, the former leader of the Quebec Liberal Party and a former minister, in a text he wrote at the request of the amicus curiae appointed by the Supreme Court to present arguments to counter those of the Attorney General of Canada.

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Mr. Ryan expressed himself in these terms:

The reference requires that first of all what is meant by Quebec be clarified...

[English]

Mr. Reg Alcock: On a point of order, Mr. Chair, I hope this is not a reflection on the quality of this piece, but our honourable friend seems to be having difficulty holding an audience. Is there a quorum here?

The Chair: It doesn't appear to me that there is a quorum.

Mr. Reg Alcock: Oh, I'm sorry. I was enjoying his piece, but I'm just not able to—

Mr. Daniel Turp: Call the members.

The Chair: We'll adjourn the meeting until tomorrow morning at 9.30.